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Of the many privileges given to the Western powers, extraterritorial rights appeared the most complicated. Note that there are broader and narrower conceptions of extraterritoriality: In the broader version, the extension of a nation's laws to its citizens abroad is implied, and thus some degree of exemption from local jurisdiction is implied. This grants the people legal immunities and consular jurisdiction that diplomats and authorized foreign personnel enjoy in their receiving states. This immunity from local law enforcement is recognized under international law to be reciprocal between countries. This is not the scope of this book. Consular jurisdiction, on the other hand, and on which this book will mainly focus, developed into a narrower, exploited version of extraterritoriality that hampered the exercise of Chinese judicial and administrative sovereignty. This asymmetrical privilege was a violation of international law.
Western extraterritoriality in China came to be generally known as consular jurisdiction; but in fact the term covered a wider spectrum of rights. Legal trials for foreigners in special courts of their own nationality, for example, were clearly beyond the scope of consular jurisdiction. Article 13 of the General Regulations, under which British trade was to be conducted at the five ports, read:
Regarding the punishment of British criminals, the British government will enact the laws necessary to attain that end, and the Consul will be empowered to put them in force; and regarding the punishment of Chinese criminals, these will be tried and punished by their own laws.
This clause drew the first line of jurisdiction between China and the Western powers, which was further elaborated on and extended in later treaties. Eventually, the partition of jurisdiction as defined in the treaties was as follows: Cases between foreigners were handled by the consul of the country to which the defendant belonged. In cases where the defendant belonged to a country that had not concluded treaties with China or that had no consular jurisdiction, a Chinese magistrate would hear the case. For cases in which the plaintiff happened to be a Chinese citizen, and the defendant was a national of a treaty power, were taken to the relevant Consular Court. In the case of the opposite situation, the case was tried by a Chinese magistrate, but the foreign consul retained the right to attend the proceedings. Consular jurisdiction was over time extended to all cases involving foreigners within Chinese territory.
In observing a trial, the foreign consul could not only speak freely, but also dispute the proceedings, as well as summon and cross-examine witnesses. The right to a joint trial was assumed to be reciprocal; however, little by little, Chinese officials gave up that right and that became the norm.
Generally speaking, extraterritoriality existed in three jurisdictional forms:
- Consular Courts, where foreign consuls applied the law of their home states and prescribed penalties over their own citizens.
- Mixed Courts within Shanghai's French and International settlements and the Gulangyu International Settlement, where foreign consuls had the right to sit in on or order a joint trial for cases not brought to the Consular Courts but which involved subjects of their nationality. Similar courts were set up in several other concessions. They were intended as an exclusive judicial organ of the Chinese government, until treaty powers wrested away control of the proceedings and extended
- Special Courts. British Supreme Courts for China were established in 1865 and 1904 with full-time judges on circuit. After that, British consular jurisdiction was limited to civil cases of CNY1,500 value and below, and criminal cases where the maximum sentence was one year in jail and a fine of no more than GBP100. After the U.S. Court for China's establishment in 1906, American consular jurisdiction was limited to civil cases not exceeding USD500 in value, and criminal cases involving not more than 60 days' imprisonment or a USD100 fine. No treaty basis existed for the British Supreme Courts and U.S. Court for China.
Table of ContentsChapter 1 Diplomatic Predicaments in the Early Years of the Republic of China
Chapter 2 The Paris Peace Conference and the Washington Naval Conference
Chapter 3 The Establishment of New Sino–Russia Relations and the Tough Stance of the Guangzhou Government on Foreign Powers
Chapter 4 The Beiyang Government’s Diplomatic Warfare to Revise Unequal Treaties and the Guangzhou Government’s Struggle for the Abrogation of Unequal Treaties